A sister among the brethren and a changing court

July 9, 1981

It is a freshly challenging time for any new justice to join the Supreme Court of the United States. Two strands of change have come together: On the one hand, Congress is considering extraordinary measures to limit the jurisdiction of the federal courts on certain issues.

On the other, the Supreme Court has already been deferring to Congress or the executive branch in cases on which the high court might not have deferred earlier -- on some of which, indeed, lower federal courts did not feel they had to defer.

One theoretical outcome of the two tendencies could be passage of legislation to invade the judicial branch's authority, with the high court obediently upholding it in continued deference to Congress.

To reach such a point could make a mokcery of America's vaunted separation of powers. Not that the courts should be immune from responsible scrutiny by the legislative and executive branches. Useful purposes can be served by focusing attention on controversial decisions and reminding the courts that their job is not to make law but interpret it. Yet their independence must be preserved if their interpretation is to be untrammelled. Every judge has to resist becoming a rubber stamp.

History shows that court interpretations are subject to later court revision. But so long as states or other jurisdictions are found to violate the Constitution, it is not "making law" to require them to comply. What would be "making law" would be to allow them not to comply. In refraining from overstepping its judicial boundaries the court cannot abdicate its guardianship of the law.

It does not necessarily do so, of course, when it makes a point of deferring to one of the other branches. In each case the grounds for deferring affect the impression made. The results so far have cut politically in various directions, deferring to Congress on strict strip-mining controls, for example, as well as on sex discrimination.

A year ago a 5-4 court majority interpreted existing legislation to allow the patenting of "man-made" organisms. It deferred to Congress on social policy ramifications on grounds that legislative bodies can provide the kind of investigation, examination, and study that courts cannot. Even the dissenters could agree on these grounds.

But in the recent 6-3 decision to defer to Congress on male-only draft registration, there was disagreement over letting Congress's authority to regulate the armed forces prevail over what some justices felt was reason to challenge Congress on constitutional grounds. In the registration decision, like the ones upholding the legislation against federal funding of abortions and denying divorced spouses a right to military pensions, the court overturned lower court rulings that had not deferred to Congress.

Such disparities in legal interpretation suggest the importance of the Supreme Court's ensuring that its "deferring" to other branches is always based on reasons resulting in better guardianship of the law. It should not mean any shrinking from full examination and confrontation of possible constitutional lap ses wherever they occur.